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Search: Symposium on the Functional Approach to the Law of Occupation

10 Jun

. decided according to the laws of Costa Rica.” Taft was therefore not somehow crafting his own approach to resolving this matter. Rather, he was applying the internal law of Costa Rica in a case where the agreement giving rise to the claim expressly made that law applicable. To be sure, Taft did not explicitly state that Costa Rican law governed because of the language of the concession agreement; rather, he stated that “[the concession’s] validity is, as I have already said, to be determined by the law in existence...
10.06.08 | |

25 May

...the right to water free of pollution, the State also must take actions to ensure that the administration of water resources is done in a sustainable manner (para. 121). The State must design measures in accordance with both the best scientific knowledge available and the criteria of availability, accessibility, sustainability, quality, adaptability, and international cooperation. Most notably, the Court analysed these substantive aspects of the RHE by adopting an explicit ecocentric approach. This approach refers to “the encompassing idea that disrupts the human/nature divide and considers the relationship between organisms...
25.05.24 | |

18 Apr

...non-international armed conflicts. Alongside these international legal instruments, customary law firmly enshrines the principle of protecting cultural property during armed conflict, expressly prohibiting its targeting. An important example of this development is the 1995 Duško Tadić case by the International Criminal Tribunal for the former Yugoslavia which affirmed the customary rule of international law prohibiting acts of theft and vandalism during non-international armed conflicts. The United Nations Declaration on the Rights of Indigenous Peoples, in Articles 11 and 12, enshrines not only the right to repatriation of human remains through...
18.04.24 | |

31 May

[Andrea K. Bjorklund is currently the Visiting Professor (Guest of the L. Yves Fortier Chair in International Commercial Arbitration), McGill University Faculty of Law; she is also a Professor of Law at the University of California, Davis. Daniel Litwin is a B.C.L./LL.B. Candidate, McGill University Faculty of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and...
31.05.12 | |

17 Sep

[Patricia Vella de Fremeaux is Professor and Head of the International Law Department of the Faculty of Laws, University of Malta. Dr Felicity G. Attard is a lecturer in the Department of International Law at the University of Malta.] In Part One, an overview of the Pact was examined in order to set the context for the following discussion on maritime search and rescue aspects contained in the instrument as well as an analysis of the human rights considerations. While the duties of SAR remain firmly within the Member State’s...
17.09.24 | and |

19 Jul

any legal characterization of the acts themselves.  The Trial Chamber’s failure to legally classify acts of violence against cultural property is not only inconsistent with both its own and other Trial Chamber’s approach to factual and legal determinations but also deprives victims of the expressive justice of a judicial determination that international crimes have occurred—independent of the personal responsibility of a given accused. Through a flawed judicial approach, the Al Hassan case regrettably leaves the core doctrinal question of the scope of ‘attacks’ under the Rome Statute and international humanitarian...
19.07.24 | |

05 Jan

dispute might be managed while respecting both sides’ interests and normative frameworks; and the question of how hard and soft law interact in this case and in others. We will deal with the first two here and the other one on hard-soft law in a separate post. Where Do Our Sympathies Lie? Our primary aim in When Cooperation Fails is analytic – to understand the roots of the dispute, the various failures to resolve it through bilateral and multilateral cooperation, the international law that has arisen from it, and the...
05.01.10 | |

18 Apr

Opinio Juris is pleased to announce an online symposium addressing social activism and international law. As our readers know, Kony 2012 was a YouTube sensation, spreading faster than any video in history. Although the details are airbrushed, the central theme of the video is about international law. The key idea of the video is that the indicted fugitive Joseph Kony should be brought to justice before the International Criminal Court to face charges of war crimes and crimes against humanity. Millions of viewers who never thought about the International Criminal...
18.04.12 | |

15 Oct

...reading is consistent with (1) jurisprudence from the Ninth and Second Circuits; (2) the pre-FSIA common law approach; and (3) international law understandings of foreign sovereign immunity; and (4) the approach taken by foreign courts. The arguments are persuasive and I would not at all be surprised if the Supreme Court follows an approach similar to this. The other analogy that Bradley and Goldsmith do not reference but that I suspect will weigh heavily in the balance in Samantar is the approach taken in the domestic context with the Federal...
15.10.09 | |

12 Mar

policy-oriented approach to international law. Rejecting efforts to offer a purely conceptual theory of international law, he argues that political decisionmakers should follow “prescriptions” (rules) according to procedures accepted by other decisionmakers. In many, but not all, cases, this means that decisionmakers should follow formal “international law.” This sort-of-commitment to follow formal international law is undergirded by a moral commitment to world order and human dignity. But the key to distinguishing Professor Cheng’s policy-oriented analysis from pure positivism is that the commitment to following law should be understood (in his...
12.03.12 | |

19 Dec

other hand, a significant part of the law of occupation is applicable even without effective territorial control if the protected person finds himself in the power of the enemy state. See more on this functional interpretation of the applicability of the law of occupation in my recent article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883203 (Just to smuggle in a little bit of unashamed self-advertisement...) Jordan Response... Tamas: thank you for this, which I am printing from SSRN. I agree that one can be "in the hands of" (GC 4) or "in the power of"...
19.12.11 | |

04 Aug

...its current status as an occupied state. carl meyer Prof. Kontorovich wrote that "For a while, the Palestinians have managed to uniquely claim to best of both worlds". To me it is the occupying power that should no longer be able to have it both ways. The laws of occupation either apply or do not apply. If it is an occupation, it is beyond time for Israel’s custodianship — supposedly provisional — to be brought to an end. If it is not an occupation, there is no justification for denying...
04.08.14 | |